We reported earlier this month that the Second Circuit, in The Bronx Household of Faith v. Board of Education of the City of New York, No. 12-2730 (2d Cir. 2014), ruled that the Board of Education of The City of New York (“Board”) did not violate the Free Exercise and Establishment Clauses of the First Amendment by permitting certain groups to use school facilities outside school hours, while at the same time prohibiting the use of school facilities by those groups for religious worship services. The battle continues, as The Bronx Household of Faith has filed a petition requesting an en banc rehearing by the Second Circuit to review the court’s recent 2-1 majority decision. It contends that, among other things, the majority decision misapplied binding precedent for free exercise claims both by (1) failing to apply the U.S. Supreme Court’s test for such claims set forth in Employment Division v. Smith, 494 U.S. 872 (1990) and (2) misapplying the U.S. Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), by ruling that strict scrutiny review of a government policy applies only where the government acts with animus. The petition builds off of Judge Walker’s dissent in which he states the Board’s policy of prohibiting religious worship services while allowing other uses on school facilities after hours “violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”
The filing of the petition stays the Second Circuit’s April 3rd decision, meaning that religious institutions can continue to hold worship services at school facilities. The petition for rehearing en banc can be accessed here.